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State v. T. S.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 31, 2017

STATE OF OHIO PLAINTIFF-APPELLANT
v.
T. S. DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-08-508944-B

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor Diane Smilanick Assistant County Prosecutor.

          ATTORNEYS FOR APPELLEE Mark Stanton Cuyahoga County Public Defender Paul Kuzmins Assistant Public Defender.

          BEFORE: Blackmon, J., Keough, A.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, J.

         {¶1} The state of Ohio appeals from the trial court's order granting an application to seal the record of conviction filed by appellee T.S. ("T.S.").[1] The state assigns the following error for our review:

The trial court errs in granting a motion to seal the record of conviction when it is without jurisdiction to grant an expungement to an applicant who was convicted of a crime in which the victim of the offense was under eighteen years of age, which is not permitted pursuant to R.C. 2953.36(F).

         {¶2} Having reviewed the record and pertinent law, we reverse and remand for further proceedings consistent with this opinion. The apposite facts follow. At the outset, we point out that if anyone deserved to have a record expunged, it is T.S.

         {¶3} On April 4, 2008, T.S. was indicted for drug possession, two counts of drug trafficking, and possession of criminal tools, all with forfeiture specifications, and three counts of endangering children. On June 16, 2008, she pled guilty to drug possession, possession of criminal tools, and the forfeiture specifications for these charges. She also pled guilty to one count of endangering children in violation of R.C. 2919.22(A), a first-degree misdemeanor, alleging that the child who is the subject of the offense was born in 2003. T.S. was sentenced to two years of community control sanctions that required her to perform community service, submit to drug tests, and obtain employment.

         {¶4} On July 2, 2014, several years after completing her community control sanctions, T.S. filed a motion to seal the record of her conviction. The state filed a brief in opposition to the motion, arguing, inter alia, that under R.C. 2953.36, the trial court was without jurisdiction to seal the conviction for child endangering because the victim of the offense was under 18 years of age.[2] The trial court held a hearing on the matter on January 15, 2015. The record indicates that no prosecuting attorney appeared on behalf of the state, and after the conclusion of the hearing, the trial court granted T.S.'s motion to seal her conviction.[3]

         {¶5} The state assigns a single error for our review, and maintains that T.S. is not eligible for expungement due to her conviction for child endangering. In opposition, T.S. argues that her conviction under R.C. 2919.22(A) is not an offense of violence, in contrast to convictions under R.C. 2919.22(B), and that at the hearing, no evidence was presented to demonstrate that the offense actually involved a child victim.

         Standard of Review

         {¶6} In State v. AS, 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187, this court explained the standard of review of a ruling on a motion to seal a record of conviction as follows:

Generally, a trial court's decision to grant or deny a motion to seal records filed pursuant to R.C. 2953.52 is reviewed for an abuse of discretion. State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, ¶ 10, citing In re Fuller, 10th Dist. Franklin No. 11AP-579, 2011-Ohio-6673, ¶ 7. However, the applicability of R.C. 2953.36 to an applicant's conviction is a question of law that this court reviews de novo. State v. M.R., 8th Dist. Cuyahoga No. ...

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